Military Vs. Civil Court
If a soldier leaves the military and is then found guilty of a crime, what happens to them then? Jose Luis Nazario was a sergeant with the Marines who was seen as a hero, leaving the military in 2005 with an honorable discharge as well as the medal of valor. However after leaving the military, charges were brought against Mr. Nazario regarding an incident in Fallujah where he allegedly shot and killed unarmed Iraqi civilians. Is it even possible to prosecute someone for a military crime after they become a civilian? The Wall Street Journal reports on this unique case and the laws that make the trial of an ex-military man possible.
Changing the game in military justice is a law passed in 2000 to address the increased use of contract personnel, who were subject to neither court-martial nor civilian trials. Passage of the Military Extraterritorial Jurisdiction Act coincided with congressional debate centered on crimes local authorities didn’t pursue, such as domestic abuse in contractor families or drug trafficking to soldiers by Americans on foreign soil. The law was seen as closing a loophole.
But under the act, many major crimes linked to the military can be pursued by federal prosecutors. Mr. Nazario’s case will be the first time that a former military man will stand trial under the MEJA for crimes said to have occurred in the fog of war.
Besides hoisting military matters into civilian courts, the case also has potential to hold veterans accountable for battlefield crimes long after their government service has ended. In theory, such crimes could be prosecuted by the federal system for years or even decades after a war is over.
Can there be any traction to these cases? Once a solider has been discharged and becomes a civilian, many years have passed since the crime was committed. There is also the issue with military crime scenes being in areas of combat and therefore very hard to investigate after the fact. In this particular instance, the case wasn’t even a case until a Marine in Mr. Nazario’s unit was made to take a lie detector test to become a Secret Service agent. When asked about his time in Iraq, the issue of this particular incident surfaced and was passed off to the Naval Criminal Investigative Service.
Navy investigators, unable to pursue Mr. Nazario’s case in military courts, turned the matter over to the Justice Department, along with a host of supporting documents, according to people familiar with the case in both organizations. The military says it is eager to pass such cases along, so that people are held accountable for their actions. Robert Reed, associate general counsel at the Department of Defense, says, "Now we’re talking about a period of days where a case can get halfway around the world and into the hands of an attorney in middle America."
Is this particular law being used out of context?
Mr. Nazario’s prosecution surprised even some of those who crafted the law. "I don’t think any of us at the time the legislation passed were contemplating that a potential criminal act that occurred while a person was on active duty in combat would be tried in a civilian court," says Sen. Jeff Sessions, the Alabama Republican who introduced the law. While he says Mr. Nazario shouldn’t escape trial, Mr. Sessions says such a matter would be better handled by the military, were that possible.
